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Ely
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 101984
Experience:  Fully licensed attorney in Texas in private practice.
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My mom passed away ~2y ago. There are three adult children

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My mom passed away ~2y ago. There are three adult children and my Dad in the picture presently. Prior her passing and while she was in ill health, she was persuaded by my sister to live with her, at which point my sister assumed power of attorney and became her health care executor. While she was still alive, my sister moved at least one or two (if not all) of her accounts into joint names with herself (i.e., Mom and my sister). At this point, my brother and elderly Dad are in need of my Mom's resources. Given that my sister does not want to let go of the funds, how difficult would it be to get a) an evaluation of what is actually available and b) actual funds available to my brother and Dad?
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your family's situation. Can you please tell me if probate was ever filed for your mother?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 3 years ago.

Unfortunately, no will and no probate.. (I am not sure if there is a time limitation for probate)

Thank you, Julie.


, how difficult would it be to get a) an evaluation of what is actually available and b) actual funds available to my brother and Dad?

On this website, I do not always get to give good news, and I am afraid that this is one of these times.

Unless your name is XXXXX XXXXX account, you have no "right" to see what is in the account per se, since this is not just your mother's account but is also your sister's. Once your mother passed, the account simply because hers. As such, you have no claim to it, arguably. It would have been different if your sister never put her name on the account, but she did.

If your mother was still living, you could have filed a declaratory petition in Court to ask the Court to void the sister's POA due to your mother's fragile state, arguing that your mother did not understand what she signed, and thus your sister's POA was invalid and her abuse of the account should be stopped and reversed. Anything signed by a party that did not understand the contract is not enforceable against that party. Ortelere v. TEACHERS'RET. BD., 25 NY 2d 196 - NY: Court of Appeals 1969.

However, your mother has passed, and as such, there is no way to prove this. While the POA's power has passed with your mother, the sister's name is XXXXX XXXXX the account and she is now seen as the valid holder.

I hate to say it, but there are few options left. I am very sorry.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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Customer: replied 3 years ago.

So the pursuit of this case would probably need to go to a judge for assessment of whether my mother was under duress..? I believe that my brother and Dad did attempt to go to see my mother while she was staying with my sister, and my sister and brother -in-law called the police (!) on them...


Pursuing this case would need to go through a lot of historical detail

Hello,

Thank you for your follow up.

So the pursuit of this case would probably need to go to a judge for assessment of whether my mother was under duress..? I believe that my brother and Dad did attempt to go to see my mother while she was staying with my sister, and my sister and brother -in-law called the police (!) on them...

If she were still alive - yes. Since she is now deceased, there is really no way to prove that this was made under duress since the Court will want to see her current cognizant state. In short, the POA is now assumed to have been valid; it is virtually impossible to void it post-facto, and as such, is virtually impossible to void her adding herself to the accounts, and as such, makes her a legitimate account holder.

Gentle Reminder: Again, surely you prefer that I be honest in my answer – please remember that rating negatively due to receiving bad news still hurts the expert – it is simply the way that the system is set up. Please use REPLY button to keep chatting, or RATE my answer when we are finished. (You may always ask follow ups free after rating.)
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